free condition of holdings burdened with agricultural services.
decisions in which the peasantry are described as holding per
furcam et flagelium, by the pitchfork and the flail,(25*) - point
in the same direction, and it may be noticed that they fall into
the early years of the XIIIth century, the time of John and the
very first years of Henry III. The feature in the mind of juries
was regular agricultural service as a symptom of villainage. One
might add that there was a tinge of contempt in the designation.
Later documents speak of the base services of the villains. In a
case of 15 King John there is a characteristic little trait
pointing in the same direction: the defendants, as free men, are
contrasted with the "consuetudinarii" of undoubtedly servile
condition, who perform all sorts of services, and, among other
things, are employed in handling "feces," in fact, acting as
scavengers.(26*)
Needless to say, that the description of all agricultural
labour as villain is a very comprehensive one, too comprehensive,
because, if carried out consequently. it would include all the
labour services performed by socagers, which were not few, and
not always trifling.(27*) But there it stands, and it cannot but
mean that agricultural service was the burden of villain tenure,
as a rule, whereas the immunity of socage labour appears in the
light of an exception. There can be no doubt that villain service
meant agricultural service. But surely villain service was due,
as a rule, from villain tenants, and villain tenements, as a
rule, were tenements of villains. Other combinations were not
impossible, but exceptional. If we compare the cases in detail,
we find that the tenants in villainage are performing the regular
labour, the week-work of the manor, whereas the socagers are
habitually called up for a few days in the year. This difference
in quantity means a great deal, of course, but it would be
difficult to make it the basis of distinction, and in many cases
it was very hard to draw the line between the two
conditions.(28*) The burden of proof lay, anyhow, on the socager;
it had to be shown that the labour services usually regarded as
villain services were performed in a certain and well-defined
manner, as if by convention.(29*) It is curious to notice that
men pleading for free tenure, and juries testifying to it, in
their search of facts to be accepted as tests, are inclined to
lay stress on the obligation on the part of the lord to provide
food for the labourer, as implying an agreement between the two.
Ad cibum proprium, ad cibum domini, are expressions which play a
conspicuous part in the proceedings.(30*) It was not a very
satisfactory clue, as pure villains often received food from
their lords, especially in the time of the autumn boonworks, but
it afforded a valuable indication, if the practice could be shown
to extend to most or all work-days claimed by the manor.
I have been speaking hitherto of the ideas dominating feudal
jurisprudence, and not of the many indications of the fact that
this jurisprudence was welding together and transforming very
different conceptions and conditions. But it is difficult to read
the thirteenth century records of cases relating to villain
tenure without being impressed by the notion that we are facing a
new departure, a jurisprudence hesitating, feeling its way on
freshly occupied ground. Already the fact that people fasten on
many and discordant tests goes far to prove it; merchet,
reeveship, borough English, alienation of cattle, examination of
week-work, food obligations of the manor are produced
concurrently and simultaneously, and sometimes jury and judges
find themselves nevertheless at a standstill. There is some
dispute about every one of the tests applied, not even excluding